UPHOLDING INTELLECTUAL PROPERTY RIGHTS IN THE PUBLISHING INDUSTRY. DOES DESTRUCTION OF THE PIRATED BOOKS SOLVE THE PROBLEM?

It is no secret that the book publishing industry in Kenya has suffered huge losses to the cartels that pirate their books. Recently, the Kenya Copyright Board (KECOBO) seized over 10,000 books which are said to be over Kshs. 5.4 million. Tomorrow, the 31st of March 2017, KECOBO shall be destroying the books that were seized. However, the question that needs to be answered is whether the destruction and burning of these books helps the situation.

Don’t get me wrong, I am a great proponent of respecting intellectual property rights in all fields across. I pride myself in buying originals from the source directly or from licensees of the sources. Further, I understand the pain of a third party undermining one’s hard work and sweat. However, looking at the education sector and the environmental impact on the numbers of trees we are cutting down to print and publish these books, surely there must be a better way to handle this!

KECOBO has been destroying and burning pirated materials for years. But the question of piracy has remained untacked and has probably scaled up. Kshs. 5 Million is no small upscale. But how hands on are the stakeholders in ensuring they keep up to date with measures to safeguard their interests and anticipate pirates? I have been informed that the Kenya Association of Publishers (KPA) have since come up with a system to ensure their intellectual property rights are secured. It has been a long time coming. My hope is that they shall always continue to monitor this new system and be able to innovate around it to keep up with and anticipate the progressive and dynamic challenges. In my view, these pirates are “very smart” and always ahead of the game.

Are the current penalties sufficient? The Copyright Act under Section 38:

4) Any person guilty of an offence under paragraph (a), (c), (e) or (f) of subsection (1) shall be liable to a fine not exceeding four hundred thousand shillings or to imprisonment for a term not exceeding ten years or to both.

(5) Any person guilty of an offence under paragraph (b) or (d) of subsection (1) shall be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both.

(6) A person convicted of an offence under this section shall be liable—

(a) in the case of a first conviction, to a fine not exceeding four hundred thousand shillings, or to imprisonment for a term not exceeding six years, or to both; and

(b) in any other case, to a fine not exceeding eight hundred thousand shillings, or to imprisonment for a term not exceeding ten years, or to both.

(7) Any person guilty of an offence under subsection (2) shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding four years, or to both.

(8) The court before which a person is charged with an offence under this section, shall whether such person is convicted of the offence or not, order that any article in his possession which appears to the court to be an infringing copy, or to be an article used or intended to be used for making infringing copies, be destroyed or delivered up to the owner of the copyright in question or otherwise dealt with as the court may think fit.

In my view, these penalties suffice, the question is whether they are being effectively used and invoked. Is KECOBO prosecuting the cartel owners or just the “small fish’ who are hired help by these shrewd “businessmen”? If you want to weed out these perpetrators make sure you yank them from the roots rather than plucking leaves and stems. The weed shall continue to prosper, don’t you think? Perhaps a suggestion to these penalties would to be to consider the commercial value of the infringed copies and ensure they guilty parties pay at least 80% of the said value from the unlawful gains made.

That said, let’s look at the environmental impact of destroying these books and the possibility of social responsibility. How about we save the trees and donate these books to public libraries and distribute them to less equipped schools in the rural areas? So many schools are under-equipped if not equipped at all. We need to acknowledge that the notion of digital books is still way ahead of the Kenyan economy and its realities. Until them, primary and secondary school books shall mainly be reproduced in hard copies.

I would propose that KECOBO and the KPA create a catalogue of these books and find methods to mark them and identify them as “Not for Sale” or “Donation” and distribute these books to the rural schools and public libraries. They can give the tedious task of marking these books to prisoners and then oversee the packaging for distribution of these books. Since we are not trusting of each other, a lot of supervision might be required. One day we shall be honest people. Maybe. I digress.

Let’s build the literacy capacity and ensure we invoke harsh penalties to the pirates. We need to start thinking with our minds and hearts, remember humanity and not let our actions be influenced by rage alone. It might be too late for the books that will be destroyed tomorrow but I hope in future we shall reconsider how we handle infringement in the publishing industry.

Very realistic observation Liz. I agree with you in “donating the books public libraries and distribute them to less equipped schools in the rural areas”. Many people and children would be happy for that. The law should be implemented strictly for people who are involved in piracy business.